11 Jul The Rise of the Global Legal Order
[Jason Beckett teaches in the Law Department of the American University in Cairo.]
We are taught to think of PIL as noble, benevolent, and weak; a tolerably just legal system unable to impose its will on an unjust world. This vision emphasises ethical PIL, humanity’s law, or international public law. It is an attractive vision, offering a noble, if Quixotic, quest to tame realpolitik. But, as David Kennedy has pointed out, there are blindspots and dark sides within this project. I want to suggest a different way of looking at PIL, as not one but two, distinct yet intertwined, legal orders. I will call the ethical project PIL, and one of the dark sides that lurks in its blind spots the global legal order (GLO).
We are familiar with the products of PIL: treaties, custom, general principles, the writings of scholars and jurists. Yet there is widespread disagreement over what these mean “in practice”; this disagreement manifests the radical indeterminacy of PIL. It is ethically neutral, and renders all conduct simultaneously legal and illegal under PIL. We are also familiar with the inefficacy of PIL, how its rules (perhaps especially in IHRL) are honoured mainly in the breach. These breaches are endemic in our unequal and unjust world.
Breaches are endemic, but they are not evenly distributed. Like global poverty, they are concentrated in the under-developed states. In deploying IHRL analyses we may, unwittingly, naturalise this. As Ntina Tzouvala has shown, this manifests as an argumentative practice embracing the dialectic of civilisation. We want to end the breaches, but this renders the perpetrators “savages” who must, yet cannot, be civilised – be brought to the standard of the rights bearer. The rights bearer is presumed to be normal, universal, thus states without rights are aberrant, delinquent; in need of intervention and correction. It has always been thus, a world divided between rich and poor, civilised and barbarous, developed and undeveloped.
Except, of course, it has not. Massive wealth inequalities are a relatively recent phenomenon. Their rise can be charted to Europe’s colonial expansion under PIL’s benevolent gaze. It is worth recalling that PIL was born in the colonial encounter, and regulated over 400 years of formal colonialism. This is neither an innocent background, nor one easily shed. Some even argue that PIL is structurally colonial, that colonialism is embedded throughout its conceptual foundations.
PIL presided over the rise of the European Empires and the genocides which enabled the establishment of settler colonies in the Americas, Australasia, and South Africa. It downgraded the status of non-European lives to that of semi- or sub-human, enabling the violent conquest of lands, people, and resources. Colonialism, and the PIL which supported and justified it, was brutal and bloodthirsty. It was also enormously profitable. In contemporary terms, resources to the value of hundreds of trillions of US dollars were plundered from the Americas alone. These financed the industrial revolution, and enabled the subsequent conquest of India, Asia, China, and finally Africa.
Brutal colonial rule, and extravagantly legal plunder, in India caused around 40 million human deaths from the 1860s to the 1940s. Numbers of deaths before that are unclear, but in the absence of the mass famines British rule induced, likely to be significantly lower. Over the course of her 300-year rule, the UK extracted approximately $45 trillion from India, leaving behind a devastated economy and populace. China was never formally colonised, but a succession of unequal treaties kept it subservient to European interests – like Egypt, a remote-control colony. These treaties concluded the formalities of Chinese defeat in the Opium Wars. They gave Britain and other European powers, and the USA control over freeports, extraterritorial jurisdiction, and control over economic and farming policies. They destroyed the Chinese economy to enrich Europe.
Asia and Africa have similar stories to tell, of colonial brutality and plunder, of destruction and immiseration. The inequalities of today are the scars of colonial history. They are not natural. Europe did not rise on the strength of industrial or mercantile ingenuity, but by the force of arms and justification of plunder. PIL regulated the plunder and justified the force. But that is all in the past, superseded by the new day that dawned torturously from the 1940s to the 1970s, the times of decolonisation. Now colonialism has ended, and PIL has played its part in that.
The decolonial moment and the rise of neocolonialism:
PIL did indeed play a part, or parts, in the struggles for decolonisation. At the symbolic level, the UN Charter provided a rhetoric of equality and self-determination. PIL could also boast “binding” UNGA resolutions on independence for colonised peoples and permanent sovereignty over natural resources (both allegedly customary international law); and more aspirational documents like the NIEO. At the material level, PIL played a different role. It ensured the continuity of colonial treaties and concessions, colonial property rights, colonial borders, and colonial forms of governance.
This material PIL, assisted, as Jessica Whyte has demonstrated, by the campaigning of the human rights community, ensured that the decolonised states were not born free. They were born into the legal and economic systems developed to further colonialism. They were born with compromised sovereignty, limited economic control, and a general understanding that their lack of development was due to their lack of respect for human rights. And yet, they persisted.
Newly independent states lacked control over their vast resources, and those who sought to wrest back control were subject to violent interventions and externally engineered coups. The new states sought development nonetheless, seeking to pursue the sort of protective, anti-market, policies their former colonisers had used to build their own (plunder fueled) development. For a while, they succeeded, but their development was fueled by debt. A combination of the OPEC embargo and Iranian revolution in the 1970s, and the US Federal Reserve’s interest rate shock of the early 1980s, made this debt unsustainable.
Facing bankruptcy and exclusion from the global economy, the formerly developing states were forced to refinance their loans. With commercial loans unavailable, they were driven into the arms of the IMF. New loans were offered, but they came with conditions beyond mere repayment. These new “loan conditionalities” demanded macroeconomic restructuring along neoliberal lines. Not coincidentally, the IMF and World Bank were each purged of their Keynesian economists over the course of the 1970s. The new conditionalities insisted that the formerly developing states reverse the policies that had brought them a brief period of actual development. The recipients had no option but to “consent” as the consequences of bankruptcy would be unbearable.
These conditionalities, which would come to be known as Structural Adjustment Policies (SAPs), demanded that states make politically unpopular decisions, even in the face of popular dissent. Tariff protections were reduced or dissolved, labour rights and minimum wages were cut, spending on social welfare and government services (other than the army and police) was slashed, food and other subsidies were removed. Almost entire populations were made instantly poorer as new markets were pried open for transnational capital.
In theory, all of this deregulation would attract direct foreign investment (FDI), unleash the creative forces of the market, and drive development. In practice, it did only the first, and even that investment came at a cost.
The rise of the GLO:
The World Bank and the IMF (IFIs) paved the way for the neocolonial transition, the decolonial moment was over. The underdeveloped states were rendered dependent on IFI support and FDI which forced them to agree ever more loans and conditionalities. This also submitted them to the rule of international investment arbitration (IIA). As Kate Miles has shown, IIA has always been pro-investor, and thus anti-host state. Over the 1970s and 1980s IIA too began to embody neoliberal ideology – re-presented as technical impartiality.
More often than not, the mere threat of arbitration is enough to bring a recalcitrant state into line with its investors’ wishes. Afterall, arbitral awards can be exorbitant, and they can be enforced under the New York Arbitral Convention. Like the IFIs, IIA wields the coercive power to enforce its demands. It is a form of compulsory global governance; or, at least, the governance of the under-developed states. The WTO completes the triad of contemporary global governance. It too deploys neoliberal economic prescriptions. Again, joining the WTO is technically optional, states choose to join. But again this “consent” is coerced for economies already SAPped into submission.
These three administrative centres operate together, in an ideologically coherent, legal-rational manner. Their policies, decisions, and implementation advice are internally consistent. They produce and enforce consistent commands. We can discern in these commands a set of rules, a legal system governing the under-developed states. These states have lost economic sovereignty, and thus political policy space. They are at the command of their masters in the GLO.
The rule of the GLO:
As noted above, neoliberal economic policies are generally unpopular among the masses that they immiserate. They are also economically ineffective – no state has developed under these prescriptions. They thus lock in a cycle of ever deepening debt and ever greater neoliberal intervention. It is important to emphasise that although implemented by national governments, these policies are dictated by the GLO. There are devastating sanctions available in the event of non-compliance. The commands of the GLO are obligatory, the commands of a Hartian legal system. National governments merely impose the will of the GLO, the legal system to which they are bound.
However, their very unpopularity, and demonstrably detrimental effects, means that these diktats must be imposed by force, against the will of the populace. The governments are caught in a double bind, but have no option but to continue. As the economic situation deteriorates and wages fall, discontent turns to protest. But the government cannot meet the demands of the protesters, they are under orders not to. And those orders will be enforced if violated. So, governance becomes oppressive: protests are extinguished and banned, people are detained and tortured, trade unions and political actors are suppressed. Order is maintained.
The flow of cash, wealth, and resources from the under-developed to the over-developed world is also maintained. Global Financial Integrity (GFI) and the Centre for Applied Research at the Norwegian School of Economics estimate that the over-developed states earn $3 trillion annually from this coercively imposed order. As much as another $2.5 trillion is accumulated through unequal exchange. The GLO extracts around $5.5 trillion per year from the under-developed states; PIL wonders why these states stubbornly refuse to develop or respect human rights.
It is worth noting that PIL’s wonderings and wanderings rarely bring it into proximity with the GLO, or what Chimni calls the “Global Imperial State in the making”. Instead, analyses are deracinated and shallow, focusing on the symptoms of the GLO’s rule in isolation eschewing causal analysis and ignoring the GLO. In this way, PIL conveniently distracts attention away from the neocoloniality of global governance, and toward the soft lights of its own eschatological promise.